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November 6, 2009

Simon Fodden

Supreme Court Clarifies Malicious Prosecution

The Supreme Court has just released the judgment in Miazga v. Kvello Estate, 2009 SCC 51, what would appear to be the final stop in a long and unhappy ride through both the criminal and civil legal systems in Saskatchewan. Essentially, several adults were prosecuted for, and convicted of, sexual assault against children based on what turned out to be false testimony. The adults brought suit for malicious prosecution against a number of people, including the Crown prosecutor, the appellant Miazga.

The Supreme Court overturned the judgment against Miazga, and in so doing set out what is required in an action for malicious prosecution against a public official for a criminal prosecution.

The judgment of the bench of seven was written by Charron J.

Simon Fodden is the founder of Slaw. He taught law at Osgoode Hall Law School for more than 30 years before he retired to focus on writing, publishing, and IT and law.
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One Comment on “Supreme Court Clarifies Malicious Prosecution”

  1. John G says:
    November 6, 2009 at 5:33 pm

    this was a bizarre case for a number of reasons, but the original judgment against Mr Miazga should never have been given. How can it have been a malicious prosecution (one in which he did not believe in a reasonable prospect of conviction) when the accused were convicted at trial and the convictions were upheld on appeal? The SCC overturned the verdict, and the complainants later recanted – but is it the Crown's duty to detect a false complaint every time, when two levels of court fell for it?

    At least the SCC has set things right. Malice means malice, not negligence or even gross negligence, or inexperience.

    The Crown does not have to have a sincere belief in guilt in order to launch or continue a prosecution, just a belief that the evidence suggests a reasonable probability of conviction. The court or the jury decides, not the Crown.

    This probably will not dry up the large number of such suits (it seems that everybody who get acquitted, and even some others, brings an action these days), but it may allow them to be disposed of more quickly.

    Interesting that the US Supreme Court is now considering the limits of malicious prosecution too, in a quite frightful case where the prosecutors knew the accused was innocent but got a conviction anyway. The US has no Nelles test, and immunity is just about absolute. Will the current composition of that Court want to change it?

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